Arkansas’ new abortion law generates confusion

LITTLE ROCK — A new Arkansas law banning a specific abortion procedure contains a provision on civil liability that has generated confusion as to its meaning.

Act 45 of 2017, approved by the Legislature and signed into law by Gov. Asa Hutchinson last month, bans a procedure known as dilation and evacuation — the law calls it “dismemberment abortion” — except when necessary to protect the mother from death or severe injury. The bill will take effect 90 days after the end of the session, which typically comes in the spring.

Several news outlets, including CNN, the Daily Beast and the Mirror, have said the law will allow a husband to sue to prevent his wife from getting that type of abortion, even if the pregnancy resulted from spousal rape.

Fact-checking website Snopes.com on Tuesday rated that claim as “false.”

Snopes pointed out that the law states that “civil damages shall not be awarded to a plaintiff if the pregnancy resulted from the criminal conduct of the plaintiff,” so a rapist cannot sue his victim for monetary damages, and the law excludes a woman “who receives or attempts to receive a dismemberment abortion” from civil liability, so a rapist could not directly sue his victim.

The law does allow the husband, parent or legal guardian of a woman who receives or attempts to receive a dilation-and-evacuation abortion to seek an injunction against “a person who has purposely violated” Act 45.

“The injunction shall prevent the abortion provider from performing or attempting to perform further dismemberment abortion in violation of this subchapter,” the law states.

Hutchinson spokesman J.R. Davis said that sentence means the injunction would bar the doctor from again violating Act 45, but it does not mean the husband, parent or guardian could prevent the initial violation.

Davis admitted he was confused by his first reading of the sentence, but he said lawyers for the governor’s office have advised that the adjective “further” applies to both “performing” and “attempting to perform,” so the sentence does not pertain to preventing an initial violation of the law but only to preventing subsequent violations.

“The key word is ‘further,’” Davis said.

Holly Dickson, legal director for the American Civil Liberties Union of Arkansas, said the sentence could be interpreted to mean that a injunction could be sought either to prevent a dilation-and-evacuation abortion or to prevent a subsequent procedure.

“It opens it up for that possibility,” she said.

The measure’s sponsor, Rep. Andy Mayberry, R-Hensley, said his intent was for the law to allow an injunction to prevent repeat violations.

“Essentially it’s just saying, ‘You either performed or attempted to perform a procedure in violation of this subchapter. Don’t do that again,’” he said.

Mayberry said that point also is made in a statement issued earlier this week by the National Right to Life Committee, which suggested language for his legislation and similar laws in other states.

He also said he believes some have intentionally misrepresented the law.

“If they can change the narrative about what the bill is, they want to do that because they have a hard time defending the practice of dismemberment abortion, which is the actual ripping apart of an unborn living child piece by piece,” he said.

Dickson said the provision on civil liability is unlikely to be invoked because dilation-and-evacuation abortions likely will not be performed in the state after the law takes effect. The law makes performing the procedure a Class D felony punishable by up to six years in prison and a fine of up to $10,000.

The ACLU will challenge the law in court, Dickson said. She said the ACLU’s main issue with the law is that it “outlaws the most common pre-viability, second-term abortion procedure.”

The U.S. Supreme Court has said states cannot bar a woman from obtaining an abortion before a fetus becomes viable, or able to live outside the womb.

Mayberry said the law does not ban all abortions, just one abortion method. Dickson said the alternative procedure that supporters of the law have most often suggested is medically indicated in only 5 percent of cases.

Similar laws have been passed but temporarily halted because of court challenges in Kansas, Oklahoma, Alabama and Louisiana. Similar laws in Mississippi and West Virginia have not been challenged.